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Recess appointments invalidated: NLRB future in question

June 27, 2014

Yesterday, the United States Supreme Court unanimously agreed to invalidate President Barack Obama’s “recess” appointments to the National Labor Relations Board (NLRB); albeit for different reasons than those in the Court of Appeals’ underlying decision. You can read the opinion here.
As you may recall, the President nominated Sharon Block, Richard Griffin and Terence Flynn to serve on the NLRB in 2011. When the Senate failed to act on these nominations at the end of 2011, the President invoked the Recess Appointments Clause of the Constitution to appoint all three to the NLRB during the 2011/2012 break. The Senate, however, held pro forma sessions throughout this break. No business was actually conducted during those sessions.
Although all the Justices agreed with the outcome of the case, the Justices were split on their reasoning underlying the decision. In short, the Court’s majority (Justices Breyer, Kennedy, Ginsburg, Sotomayor and Kagan) agreed that the appointments were invalid because the Senate said it was still in session, even if it was not conducting any business during the pro forma sessions. And, although the President appointed Block, Griffin and Flynn during breaks between the pro forma sessions, the three-day breaks between these sessions was not long enough to implicate the Recess Appointments Clause.
What does this decision mean? Essentially, the Senate can block recess appointments if it simply “remains in session” during breaks. In addition, the NLRB could be powerless to act every five years if vacancy appointments are not confirmed by the Senate. Finally, any decisions rendered by the NLRB based on a quorum that was reached with the attendance of an invalidated appointee are likely invalid. The NLRB is evaluating the impact of the Court’s decision on those cases. You can read the NLRB statement here.

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